Thursday, February 10, 2005

DMCA Used to Cover Camel Toe

Tinkering with software and hardware can lead to some creative results in games. Infamous is the nude patches for the characters in Ninja Gaiden and Dead or Alive. These patches, achieved through modification of the software/hardware of the game's console, the Xbox, results in stripping the bathing suits of the female characters. The result is more than a little obvious, with hard nipples and a view of what's called the camel toe.

These sexual tinkerings were provided on the site ninjahacker.net (now offline), and initially the game manufacturer Tecmo thought little of it. In an interview Tomonobu Itagaki, the head of Tecmo's studio, expressed that he cared little about the hacks of his game and said that:

"I prefer to have pretty girls with their swimsuits on. I think the people who made my characters naked need to find love in real life." [laughs]

Real life has proven not to be so kind for the hackers that sought some sexual gratification in virtual life. Tecmo has now filed a lawsuit against the administrators of ninjahacker.net and some undisclosed individual active for "creating, hosting and contributing content to a forum created to foster and facilitate the knowing infringement of Tecmo's proprietary software for its video game titles." Tecmo's claim is, amongst others, made under the anti-circumvention provisions of the Digital millennium Copyright Act (DMCA). According to the general manager of Tecom:

"It's not an issue of nudity. It's simply the violation of our IP (intellectual property) and the code."

This is quite a turn, to come down on a hack that has been available for years. This case is reminiscent of the controversy surrounding the Sony Aibo Pet, a little robot dog. Sony claimed that a hobbyist, who had cracked the encryption surrounding the source code so that he could reverse engineer programs to let Aibo owners customize the robot's voice recognition, violated the DMCA provisions and ordered him to remove his programs from his website. After a public outcry some programs were put back online.

Sony invoked the DMCA while there was no case of piracy. The Aibo hacks were freely distributed, and allowed merely extra functions that Sony did not offer. It made the product more attractive for its owners, as the nude patch more than probably does for the owners of the Tecom games. Extra customization, extra usability, extra fun, extra worth for the owners and a higher popularity of game. What's the negative effect in that, not legally speaking?

It's unclear to me if the accused in the Tecmo case distributed the source code or the encryption code, unlike with the Aibo pet. Presumably they have and this would make a difference for a copyright infringement and DMCA claim. Still, does Tecmo really seek to enforce its copyrights, or is it merely covering up some virtual camel toes?

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Update: At Chosaq Andreas Bovens deepens the issue. He notes that while Tecmo has won similar cases in Japan, the outcome might be different in the U.S. with Lewis Galoob Toys, Inc. v. Nintendo of America, Inc (opinion) as a precedent.

I'm not sure if this "precedent" would be followed. Though both the Nintendo case and the current Tecmo case involve the alteration of certain game character's features -in Nintendo increasing strength and speed, for example- the technological process to achieve this and especially the law under which the Nintendo case was decided are different.

To concentrate on the legal issue, in the Nintendo case manufacturer Galoop was sued for copyright infringement for making a derivative work. Thus not for trafficking in circumvention tools and use thereof, after which an equal claim of copyright infringement is made by Tecmo. The point is that in the Tecmo case the (extra) violation is in the circumvention provisions of the DMCA, which was not in place in the time of the Nintendo case (1992).

Before a judge in Tecmo might conclude, as in Nintendo, that there is no derivative work, or if there is it is a fair use, he will have to answer the DMCA circumvention issue. On that ground alone Tecmo might win, and not come to the conclusion in the Nintendo case: "Having paid Nintendo a fair return, the consumer may experiment with the product and create new variations of play, for personal enjoyment, without creating a derivative work."

The Tecmo case might just give us another example of how the DMCA blocks the fair use of users, although Jason Schultz of the Electronic Frontier Foundation sounds more confident about the legal issues:

"This complaint is absurd. The law allows for fair use of other people's copyrighted works without any permission needed, and one of the key things that you're allowed to do is make copies in order to reverse engineer and understand how they work." "If they'd offered a competing video game with Tecmo's code in it, it's a legal issue. But here, they have simply offered a way for legitimate game owners to modify how the game looks on their screen. Its like a home customization kit. It's not competing in any way with Tecmo's product. In fact, you have to own Tecmo's product to use this stuff."